Sep. 4, 2013 – In late 2011, State Bar of Wisconsin President Jim Brennan (2011-12) initiated a Judicial Task Force to study the issue of public confidence in the independence of the courts. The task force studied and considered all of the alternatives presently used by other states and the federal system including those with various forms of merit panels and retention elections.
Task force members are attorneys Joe Troy, who serves as chair, Cathy Rottier, Tom Shriner, and Chris Bremer Muggli. The task force will recommend, potentially this month, that the State Bar’s Board of Governors endorse a unique plan that changes the terms of Wisconsin Supreme Court justices to a single, 16-year period. This constitutional amendment would require the approval of two consecutive legislatures.
Under this plan, once elected, no justice will have to become a political candidate during their service, and can focus on the constitutional responsibilities of the rule of law and administration of justice. The executive summary of the task force’s report is detailed below.
On Judicial Independence
The genius of our state and federal constitutions is most evident in their principles of separation of power among the three co-equal branches of government and system of checks and balances. The unique role of the judicial branch is to uphold the rule of law independent of the political forces which, rightly, influence the legislative and executive branches. Separating the judiciary from politics is the key to its independence, a principle former United States Supreme Court Chief Justice William Rehnquist referred to as “the crown jewel of our system of government.” We were asked to examine this crown jewel in Wisconsin to see if there is a way to help it shine more brightly. We invite you to consider our idea of how this can be accomplished.
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The Case for a Single, Extended Term of Office for Supreme Court Justices
In what follows, we explain our process, alternatives considered by the Task Force, and how our views have been informed by considering aspects of the history of our supreme court. We worked to develop a proposal that will structurally facilitate the public’s confidence in the independence of the supreme court and is politically neutral and feasible. We believe that changing our constitution to provide for a single, 16-year term for supreme court justices will engender greater confidence in the independence of the court and respect for the office. In very summary form, here’s why:
Justices Will Not Become Political Candidates for Reelection. Once elected, justices would be free to focus fully on the law and their vital role under the constitution. Justices will not need to seek support for reelection from individuals and groups with identifiable political perspectives and economic interests. In the past 96 years only one previously elected justice has actually lost a reelection. (Chief Justice Currie in 1967, the year after he joined the decision to allow the Braves to move to Atlanta). Historically, our present system results in expensive, polarizing reelections with the all but certain reelection of the incumbent justice.
The Proposal Eliminates the Perception that Court Decisions are Motivated by Concern for Reelection. Since justices will not stand for reelection, their decisions cannot be attacked or distorted by allegations that justices were motivated by concerns for maintaining favor with those who would support their reelection.
Structurally Consistent with the Constitutional Principles of Separation of Powers and Checks and Balances. Unlike the executive and legislative branches of government, the judicial branch should be nonpolitical. This plan structurally reinforces the separate, nonpolitical role of our highest court.
Collegiality Will Be Structurally Supported. The single, extended term will promote collegiality on the court by eliminating the potential that justices will publicly or privately oppose a colleague’s reelection. It also means that there will be a periodic change in leadership of the Chief Justice as the longer serving justices’ terms come to an end.
Politically Neutral and Feasible. To earn the broad, bi-partisan support necessary to amend the Constitution, the proposed amendment must result in a change that is politically and ideologically neutral and widely accepted as a reform that will enhance public confidence in the court’s independence.
Nonpartisan Elections are Preserved, Frequency is Reduced. The proposal maintains Wisconsin's tradition of nonpartisan election of supreme court justice, but reduces the frequency of often politically charged and costly elections.
Campaigns are Less Likely to Generate Unfair Attacks on Sitting Justices. The negative advertising that frequently accompanies a challenger’s campaign against an incumbent justice demeans the office as well as the incumbent justice. Under this proposal elections will not involve justices who have served an elected term. They will involve candidates who have never served on the court (or one of the candidates may have served a short period of time following an appointment to fill a vacancy). Either way, the campaigns are much less likely to demean a sitting justice, the court or distort a justice’s record on the court.
Election Reform Largely Controlled by U.S. Supreme Court Decisions. The role of special interests and money in state supreme court elections is largely controlled by U.S. Supreme Court decisions interpreting the First Amendment and cannot materially be changed by state constitutional amendment, legislation, or judicial decisions. Many proposed changes are simply constitutionally prohibited. Our efforts focus on a plan that improves public confidence in the judiciary, is consistent with current constitutional law, and is politically feasible.
Why a Sixteen-Year Term Limitation? Over 80 percent of all Wisconsin Supreme Court justices since 1950 have served 16 years or less. The average term over the last 60 years is about 13 years. Our proposed limit will not reduce the actual average tenure of justices or their ability to influence the development of the law. A single 16-year term is long enough to attract highly qualified candidates, but not so long as to create nearly life tenures.
Why Not Merit Selection? The Judicial Task Force studied and considered the various merit selection plans used or proposed in other states. What many advocates of merit selection don’t discuss is that all of these plans have some form of retention election following a period of appointed service. Retention elections have more recently developed into the same kind of politically-charged, special interest funded campaigns that the merit process was designed to avoid. Since the incumbent justice has no opponent, retention election challenges are inherently negative and often driven by single issue special interest groups.
We believe that the political opposition to a merit selection plan would be insurmountable. Wisconsin citizens are loath to give up their right to vote. Opponents to merit selection would be able to effectively characterize such a plan as elitist and nondemocratic. Previous legislative proposals have fallen under the weight of these very arguments. In addition, structuring a constitutional amendment determining the composition of who should serve on a merit panel is unlikely to find consensus in our polarized political climate.
Task Force Members
Joseph Troy, former Outagamie County Circuit Court and chief judge, and currently a partner at Habush, Habush & Rottier S.C., is the chair of the task force
Catherine M. Rottier, a partner at Boardman & Clark LLP in Madison and a former president of Wisconsin Defense Counsel
Thomas Shriner, a commercial litigator and partner at Foley & Larder LLP in Milwaukee, an adjunct professor at Marquette University Law School, and a former president of the Seventh Circuit Bar Association
Christine Bremer Muggli, a plaintiffs' personal injury lawyer with Bremer & Trollop S.C. in Wausau and a former president of Wisconsin Association for Justice